Farnham and Doherty (Child support) - [2019] AATA 5502

Farnham and Doherty (Child support) [2019] AATA 5502 (20 November 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/MC016193
APPLICANT:  Mr Farnham
OTHER PARTIES:  Child Support Registrar
Ms Doherty

TRIBUNAL:Member P Noonan
DECISION DATE: 20 November 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Farnham’s adjusted taxable income is varied to $190,824 per annum for the period 30 January 2018 to 30 June 2018 and to $112,356 for the period 1 July 2018 to 31 December 2021.

CATCHWORDSCHILD SUPPORT – departure determination – income, property and financial resources of both parents – benefits derived from business – child’s special needs – child care costs – is departure just and equitable – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Mr Farnham and Ms Doherty are the parents of three children who are currently relevant to the child support assessment.
The Child Support (Assessment) Act 1989 (“the Act”) provides for an administrative assessment of the child support payable. It uses a formula, which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
A child support case was first registered with the Department of Human Services (the Department) on 22 November 2016 and child support was registered for collection by the Department from 16 May 2018. The Department maintains a case completion date for this matter of 9 July 2031.
On 30 January 2018 Ms Doherty applied for a departure from the assessment of child support payable at that time. Care of the children is registered as being 263 nights per year to Ms Doherty and 102 nights per year to Mr Farnham. At the time of Ms Doherty’s departure application the applicable assessment of child support payable was:
·For the period 1 September 2017 to 30 November 2018, the annual rate of child support payable is $4,170 based on Mr Farnham’s 2016-17 adjusted taxable income of $6,924 and Ms Doherty’s 2016-17 adjusted taxable income of $168,941.
On 7 May 2018 a Department officer, acting as a delegate of the Child Support Registrar, found that a ground for departure was established and decided to depart from the assessment in the following terms:
·For the period 1 January 2018 to 31 December 2018, the annual rate of child support payable by Mr Farnham is increased by $7,583.
Mr Farnham objected to this decision and on 23 October 2018 a Department objections officer allowed his objection. The officer decided to depart in the following terms:
·For the period 1 January 2018 to 30 June 2019, the child support payable by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farnham and Doherty (Child support)

Details

AGLC: Farnham and Doherty (Child support) [2019] AATA 5502
Case: [2019] AATA 5502
Decision Date: 20 November 2019

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr. Farnham, against a departure determination made by the Child Support Registrar concerning child support payable for the parties' child. The mother, Ms. Doherty, had sought a departure from the usual formula assessment, citing the father's income, property, and financial resources, as well as benefits derived from his business. The child’s special needs and childcare costs were also raised as factors. The appeal was heard by the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Registrar’s decision to depart from the formula assessment was justified, and if not, whether it was just and equitable to make a substituted departure determination. This involved considering whether the existing assessment was inadequate due to the father's financial circumstances and the child's specific needs, and if so, what a just and equitable assessment would be.

The Court reviewed the evidence presented regarding the father's income and financial resources, including benefits derived from his business. It also considered the child's special needs and the associated childcare costs. The Court found that the Registrar’s original decision was not justified and therefore set it aside. The Court then substituted its own departure determination, finding it just and equitable to do so based on the evidence before it.

Orders